MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:             22 February 2001                  
	DOCKET NUMBER:     AR2000047163

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		                        Director	
	Mr. Edmund P. Mercanti		                        Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Mr. Stanley Kelley		Member	
	Mr. Ted S. Kanamine		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  In effect, that the honorable discharge he received at the expiration of his term of service (ETS) be corrected to a medical retirement.

APPLICANT STATES:  That he broke his leg and had been shot while on active duty.  

EVIDENCE OF RECORD:  The applicant's military records show:

He reenlisted in the Regular Army in pay grade E-4 on 26 October 1979 with 3 years of prior active service.

He served as a fuel electrical system repairer at Ft. Meade, Maryland and Ft. Irwin, California.  On 4 August 1981 he accepted nonjudicial punishment under Article 15, UCMJ, for being AWOL from 17 to 22 July 1981.  His punishment included a forfeiture of $100.00, 14 days of extra duty, and a reduction from pay grade E-4 to E-3.  The reduction in grade was suspended and never vacated.

On 24 November 1982 the Director of Health Services at Ft. Irwin submitted the applicant’s request to be extended on active duty to continue receiving medical treatment.  In that correspondence the Director of Health Services stated that while the applicant had a valid medical problem, his actions after his initial separation date had been such to warrant disapproval of his request for another extension of his enlistment.  The Director explained that the applicant had been extended on active duty once before and had indicated that he did not want to be extended again, but changed his mind on the day he was to be separated.  The Director continued that subsequent to the applicant’s ETS, he had been confined by civil authorities for 24 hours and was pending charges under the UCMJ for three separate incidents.  The Director’s recommendation was approved and the applicant was honorably discharged in pay grade E-4 on 9 December 1982.

The applicant’s Military Personnel Records Jacket do not contain any of his medical records.

Army Regulation 635-40, paragraph 1-2, provides that a soldier who is charged with an offense or is under investigation for an offense for which he could be dismissed or given a punitive discharge may not be referred for disability processing.  However, if the officer exercising appropriate court-martial jurisdiction dismisses the charge or refers it for trial to a court-martial which cannot adjudge such a sentence, the case may be referred for disability processing.  When forwarded, the records of such a case must contain a copy of the action signed by the court-martial authority who made the decision. 

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded:

1.  While the applicant’s MPRJ shows that he was being treated for a medical condition which was considered serious enough to warrant retention on active duty, there is no indication what that/those medical condition(s) was/were, and if it/they were medically disqualifying.  In addition, even if the medical condition(s) was/were medically disqualifying at the time, was/were the medically disqualifying condition(s) remedial with short term treatment?  

2.  Without medical records to answer the forgoing questions, there is no evidence that the applicant’s medical condition(s) would have warranted a medical discharge or retirement.

3.  In addition, since the applicant was pending charges under the UCMJ he would not have been eligible for consideration under the Army disability processing system.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

___rvo __  ___sk ___  ____tsk__  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000047163	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010222	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	108.05	
2.		
3.		
4.		
5.		
6.